LEE BY LEE v. Bourgeois

Present:   All the Justices

TRINICA ANN LEE, AN INFANT, WHO
SUES BY EARTHA K. LEE, HER MOTHER
AND NEXT FRIEND

v.   Record No. 952317          OPINION BY JUSTICE ELIZABETH B. LACY
                                         November 1, 1996
F. JOHN BOURGEOIS, M.D.

       FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                        Jay T. Swett, Judge


      In this case we consider whether an attending physician

employed by the state is entitled to sovereign immunity for

alleged acts of simple negligence.
      Eartha K. Lee was admitted to the high risk pregnancy

service at the University of Virginia Hospital (University

Hospital) on September 23, 1985, when she was approximately 28

weeks pregnant.   Dr. Siva Thiagarajah, Lee's attending physician,

prescribed a management plan for her medical treatment.    Dr.

Thiagarajah's plan was to stop preterm labor with drugs and to

monitor Lee for infection.    When Dr. Thiagarajah went off duty on

the afternoon of September 27, 1985, Dr. Francis John Bourgeois

took over as Lee's attending physician.

      Around five o'clock on the evening of September 27, 1985,

Dr. Julie L. Blommel, a first year resident, was notified by

nurses that Lee was having contractions.    Dr. Blommel visited Lee

45 minutes later and determined that she needed to be moved

across the hall to the labor and delivery room for assessment of

whether she was in labor.     Around 6:45 p.m., Dr. John Donnelly,

the chief resident of the high risk pregnancy service, performed

a pelvic examination on Lee.    Although delivery by cesarean
section was the preferred form of delivery for Lee's condition,

Lee's labor had progressed too far and a cesarean section was no

longer a viable option.   Therefore, Dr. Donnelly performed an

emergency vaginal delivery.   The baby was in a breech position

and during delivery its head was entrapped when the cervix

constricted upon the baby's neck and head after the delivery of

the legs.   In the course of the delivery, Dr. Donnelly applied

traction.   The baby's spinal cord was traumatically injured and

she is permanently paralyzed.
     The infant, Trinica Ann Lee, filed a motion for judgment by

her mother and next friend, Lee, naming the Commonwealth and

seven doctors, including Drs. Thiagarajah and Bourgeois as

defendants, alleging that they negligently provided medical

treatment to her.   The plaintiff nonsuited five of the doctors

and the Commonwealth.   One of the remaining doctors, Dr.

Bourgeois, filed a plea of sovereign immunity and a motion for

summary judgment based on that plea.   The trial court held that

Dr. Bourgeois was entitled to sovereign immunity and dismissed

Dr. Bourgeois from the case with prejudice.   Dr. Thiagarajah was

subsequently nonsuited.   We awarded the plaintiff an appeal to

review the trial court's determination that Dr. Bourgeois was

entitled to sovereign immunity.

     In determining whether a state employee is entitled to

sovereign immunity in an action alleging acts of simple

negligence, we apply the four-part test set out in James v. Jane,
221 Va. 43, 267 S.E.2d 108 (1980), and Messina v. Burden, 228 Va.

301, 321 S.E.2d 657 (1984).   The four factors are:   the nature of
the function performed by the employee, the extent of the state's

interest and involvement in that function, the degree of control

exercised by the state over the employee, and whether the alleged

negligent act involved the use of judgment and discretion.       Id.

at 313, 321 S.E.2d at 663.

     In this case, the trial court focused its analysis on the

first two factors, the function of the employee and the state's

interest in that function.   These two factors have previously

been addressed in the context of state-employed physicians.      In
James v. Jane, we determined that three physicians employed by

the Commonwealth as faculty members at the Medical School of the

University of Virginia were not entitled to sovereign immunity in

actions for negligence based on allegations that they failed to

exercise reasonable care in attending a patient.    221 Va. at 55,

267 S.E.2d at 114.   The rationale of the decision was two-fold.

First, the Commonwealth's paramount interest was that the

University of Virginia operate a good medical school staffed with

competent professors.   The Commonwealth's interest in quality

patient care was the same whether that patient was being treated

in a public teaching hospital or in a private medical

institution.    Since the actions complained of related to the

provision of patient care, not the educational function of the

faculty members, the state's interest was slight.   Second, a

physician's exercise of professional skill and judgment in

treating a patient is not subject to the control of the

Commonwealth.   221 Va. at 54-55, 267 S.E.2d at 114; Lohr v.
Larsen, 246 Va. 81, 85-86, 431 S.E.2d 642, 644-45 (1993).
     Since James v. Jane, we have considered other cases

involving allegations of negligence against physicians who were

employed by the Commonwealth.   In Gargiulo v. Ohar, 239 Va. 209,

387 S.E.2d 787 (1990), a board-certified physician was employed

by a state hospital as a fellow in a medical research and

training program run by the hospital.   We held the employee was

entitled to immunity in an action alleging that she negligently

treated a patient participating in the research program.    In

discussing the nature of the employee's function, we concluded

that the alleged negligent acts were performed by the employee in

her capacity as a student which was a function "essential to

achievement of the Commonwealth's goal . . . of training and

maintaining a pool of specialists skilled in a particular

discipline."    Id. at 213, 387 S.E.2d at 790.

     Subsequently in Lohr, we concluded that a physician treating

a patient for breast cancer in a public health clinic was

entitled to sovereign immunity for alleged acts of simple

negligence.    Analyzing the function of the physician employee and

the state's interest, we concluded that treating the patient was

"an essential part of the clinic's delivery of its health care

services" and that the state had a substantial interest in

providing quality medical care for citizens in certain areas of

the state who are economically unable to secure such services

from the private sector.   246 Va. at 86, 431 S.E.2d at 644-45.

     In analyzing the employee's function and the Commonwealth's

interest and involvement in that function in this case, the trial

court found that Dr. Bourgeois' function at the time of the
alleged negligent acts was to be "available for consultation by

any member of the obstetrical house staff." Because no member of

the house staff consulted Dr. Bourgeois concerning Lee's

pregnancy and delivery and he had no other personal contact with

her, the trial court concluded that Dr. Bourgeois' function was

that of "a teacher and consultant to residents, as opposed to a

treating physician administering medical care to patients."    The

trial court held that in this role Dr. Bourgeois was furthering

the paramount interest of the University Hospital as set out in
James v. Jane, that is, operating a good medical school staffed

with competent professors.

     Our review of the record, however, indicates that Dr.

Bourgeois' function at the time of the alleged negligent acts was

more than simply being available to consult with residents or

other members of the obstetrical staff.   In his role as attending

physician, his primary function related to the treatment of

patients and is analogous to that of Dr. Hakala, the attending

physician in James v. Jane.   We conclude that Dr. Bourgeois, like

Dr. Hakala, is not entitled to sovereign immunity under the

circumstances of this case.

     The physicians at the University Hospital are divided into

two categories.   The "house staff" category includes interns,

residents, and fellows.   The house staff does not have hospital

admitting privileges.   The "medical staff" category is comprised

of fully-licensed physicians who have completed their training

and are full-time faculty members in the Department of the School

of Medicine.   The medical staff supervises the house staff.
     The University Hospital requires that all patients in the

hospital be assigned an attending physician who is a member of

the medical staff.   The attending physician is responsible for

determining a treatment plan for the patient and for making

decisions regarding the medical care of the patient.    The

attending physician is also responsible for supervising the

patient care administered by the house staff.    The house staff

may not undertake certain procedures, such as performing a

delivery by cesarean section, without consulting the attending

physician.
     If the attending physician for a patient goes off duty,

another member of the medical staff of the hospital must be

designated as the attending physician for that patient.    The

subsequent attending physician has the same responsibilities

regarding the medical care of the patient as the previous

attending physician. *

     In this case, Lee arrived at the emergency room with

pregnancy complications.    Dr. Allen Hogge admitted her to the

high risk pregnancy service and later Dr. Thiagarajah became her

attending physician.     Both Dr. Hogge and Dr. Thiagarajah were

members of the medical staff and the Maternal Fetal Medicine

division of the Department of Obstetrics and Gynecology at the

University Medical School.    Dr. Thiagarajah devised a treatment

     *
      The trial court and Dr. Bourgeois refer to the doctor's
role as an "on call attending" or an "on call faculty member."
 These terms are not defined in the record and the record
speaks only of an "attending physician" in terms of the
requirements for patient care.
management plan for Lee.   Dr. Thiagarajah and various interns and

residents, under Dr. Thiagarajah's supervision and direction,

attended to the care of Lee.

     On September 27th, Dr. Bourgeois became the attending

physician for Dr. Thiagarajah's patients.   As part of the

transfer of patients from one attending physician to another, Dr.

Thiagarajah reviewed the condition and status of his patients

with Dr. Bourgeois.   According to Dr. Bourgeois, the patients

were not identified by name, but their conditions were summarized

in general categories.   In accepting this assignment as attending

physician, Dr. Bourgeois testified that he assumed the same

responsibilities for Lee's care as those borne by Dr.

Thiagarajah.   He acknowledged that, as attending physician, he

became responsible for making the final decisions on Lee's care.

He could examine Lee, review her chart, change Dr. Thiagarajah's

treatment plan, and alter instructions to the residents regarding

notification of labor or the method of delivery.   As attending

physician, Dr. Bourgeois was also obligated to respond to

inquires from the residents regarding the care of the patients.
     As the trial court noted, the role of the attending

physician includes teaching responsibilities, particularly when

responding to questions raised by residents or other members of

the house staff.   However, the hospital policy requiring an

attending physician for each patient at all times is not

primarily directed to the goal of good teaching practices, but to

insuring that patients receive competent care.   Furthermore, the

General Assembly has required that all persons in the category of
house staff be responsible and accountable to a licensed member

of the hospital staff.    Code §§ 54.1-2960, -2961.   The care of

the patient could not be, and was not, left solely to the house

staff.    Thus, the function of Dr. Bourgeois as attending

physician was directly related to assuring that the patient, in

this case Lee, received the proper care, whether delivered

directly by him or indirectly through a member of the house

staff.
         The trial court and Dr. Bourgeois put significant emphasis

on the fact that Dr. Bourgeois did not engage in any direct

treatment of Lee and was not consulted by a member of the house

staff regarding her treatment.    The argument that the absence of

action by the attending physician or the failure of a resident to

call on the attending physician makes the attending physician's

function solely a teaching function is not persuasive.    Dr.

Bourgeois accepted Lee as a patient for whose care he was

responsible when he agreed to replace Dr. Thiagarajah as Lee's

attending physician.    Dr. Bourgeois used his professional medical

judgment when he determined that the medical treatment plan

devised for Lee by Dr. Thiagarajah was proper and would remain in

place during Dr. Bourgeois' time as attending physician.     As

noted above, Dr. Bourgeois also used his professional judgment

regarding Lee's treatment when he decided that he did not need to

examine her or her charts or engage in any other clinical

evaluation of her at the time he became her attending physician.

The responsibility of an attending physician and the decisions

incumbent upon one in that position are directly aimed at
insuring quality care for the patient.   While the acts which Dr.

Bourgeois did, or did not do, may be relevant to issues of

liability, his acts or omissions are not dispositive on the issue

of sovereign immunity in this case.

     The only difference between Dr. Bourgeois and Dr. Hakala, an

attending physician in James v. Jane, is that Dr. Hakala was

consulted as to the need for surgery and was present in the room

while the surgery was performed by another.     221 Va. at 49, 267

S.E.2d at 111.   Dr. Hakala did not render any direct treatment to

the patient.   Nevertheless, we held he was not entitled to

sovereign immunity because the alleged acts of negligence

occurred as part of patient care, not as part of maintaining a

good medical school, and the acts involved the exercise of

professional medical judgment, a function beyond the control of

the Commonwealth.   Id. at 54-55, 267 S.E.2d at 114.

     Because we find that Dr. Bourgeois' function as an attending

physician in this case was related to patient care and that acts

taken regarding patient care are within the professional medical

judgment of the physician, we conclude that the state's interest

and degree of involvement are slight.    Id.   Therefore, Dr.

Bourgeois is not entitled to sovereign immunity for the alleged

negligent acts raised in this action.

     Accordingly, the judgment of the trial court will be

reversed and the case remanded for further proceedings.

                                               Reversed and remanded.